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DUI Law: Refusal to Submit to a BAC Test

Below is an abbreviated version of the California Judicial Council's jury instruction defining the allegation that a defendant refused to submit to a BAC test following a DUI arrest:

If you find the defendant guilty of DUI, you must then decide whether the People have proved the additional allegation that the defendant willfully refused to submit to or complete a chemical test to determine his blood alcohol content (or whether he had consumed a drug).

To prove this allegation, the People must prove:

  1. A peace officer asked the defendant to submit to a chemical test to determine his blood alcohol content (or whether he had consumed a drug);
  2. The peace officer fully advised the defendant of the requirement to submit to a test and the consequences of not submitting to a test;
    AND
  3. The defendant willfully refused.

To have fully advised the defendant, the peace officer must have told him all of the following information:

  1. He may choose a blood or breath or urine test; if he completes a breath test, he may also be required to submit to a blood or urine test to determine if he had consumed a drug; [if only one test is available, he must complete the test available;] [if he is not able to complete the test chosen, he must submit to another test;]
  2. He does not have the right to have an attorney present before saying whether he will submit to a test, before deciding which test to take, or during administration of a test;
  3. If he refuses to submit to a test, the refusal may be used against him in court;
  4. Failure to submit to or complete a BAC test will result in a fine and mandatory imprisonment if he is convicted of driving under the influence or with a blood alcohol level of 0.08 percent or more;
    AND
  5. Failure to submit to or complete a test will result in suspension of his driving privilege for one year or revocation of his driving privilege for two or three years.
  6. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

Related Issues

Admonition Must Convey Strong Likelihood of Suspension

It is insufficient for the officer to advise the defendant that his or her license "could" be suspended. The officer must convey to the defendant that there is a strong likelihood that his or her license will be suspended.

Admonition Must Be Clearly Conveyed

"[T]he burden is properly placed on the officer to give the warning required by section 13353 in a manner comprehensible to the driver." Thus, in the Thompson case, the court set aside the defendant's license suspension because radio traffic prevented the defendant from hearing the admonition. However, where the defendant's own "obstreperous conduct ... prevented the officer from completing the admonition," or where the defendant's own intoxication prevented him or her from understanding the admonition, the defendant may be held responsible for refusing to submit to a chemical test.

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